Hexagon Holdings, Inc.
Carlisle Syntec Incorporated et al.
Washington County Superior Court, (WC 15-512) Associate
Justice Bennet R. Gallo
Plaintiff: Joel K. Goloskie, Esq., William E. O'Gara,
Defendant: John Caletri, Esq., Gerald C. DeMaria, Esq.
Kristina Hultman, Esq. Alex A. Romano, Esq.
Suttell, C.J., Flaherty, Robinson, and Indeglia JJ.
Gilbert V. Indeglia Associate Justice.
plaintiff, Hexagon Holdings, Inc. (Hexagon), appeals from the
grant of summary judgment in favor of defendant McKenna
Roofing and Construction, Inc. (McKenna). This matter
originally appeared before the Court on an order to show
cause why the issues in the case should not be summarily
decided. In an order dated March 5, 2018, the Court returned
the case to the regular calendar for full argument.
Hexagon Holdings, Inc. v. Carlisle Syntec
Incorporated, 179 A.3d 146, 147 (R.I. 2018) (mem.). In
doing so, we "specifically direct[ed] the parties to
brief the third-party intended beneficiary issue among such
other issues that they consider germane to decide the issue
before this Court." Id. The parties appeared
before the Court on October 3, 2018, for oral argument. For
the reasons set forth in this opinion, we affirm the judgment
of the Superior Court.
pertinent facts are as follows. In 2006, Hexagon entered into
a contract with A/Z Corporation to construct a new facility
at the Quonset Business Park, located in North Kingstown,
Rhode Island. As general contractor, A/Z Corporation
subcontracted the roofing installation to McKenna,
authorizing McKenna to install a specific roofing system
manufactured by defendant Carlisle Syntec Incorporated
(Carlisle). Hexagon alleges that, almost immediately, the new
roof began to leak.
October 14, 2015, approximately nine years after first
contracting with A/Z Corporation, Hexagon filed a complaint
in Washington County Superior Court against Carlisle and
McKenna, alleging breach of contract as to both defendants
(Count I); breach of express warranty as to Carlisle only
(Count II); and breach of the implied warranty to construct
in good and workmanlike manner (Count III), misrepresentation
(Count IV),  and negligence (Count V), against both
defendants. Hexagon alleged that McKenna had
improperly installed the roof and sought to recover the cost
of replacing it. Hexagon did not assert claims against A/Z
Corporation, the general contractor, for reasons Hexagon
later described as "judicial efficiency and not choosing
to damage a relationship with somebody that [it] had a
positive relationship with * * *." McKenna moved for
summary judgment pursuant to Rule 56 of the Superior Court
Rules of Civil Procedure and provided the following as the
undisputed statement of facts:
"The plaintiff entered into a contract with A/Z
Construction [sic] to act as a general contractor
for the construction of its building located at 250 Circuit
Drive, North Kingstown, RI in 2006. * * * Plaintiff alleges
that Carlisle supplied a 'Carlisle Golden Seal Total
Roofing System' to the building. * * * Plaintiff's
Complaint further alleges that Carlisle supplied it with a
written warranty concerning the roofing system dated July 15,
2006. * * * McKenna was a subcontractor on the project, and
installed the Carlisle roofing system.
"Plaintiff alleges that the roofing system failed. * * *
Specifically, the plaintiff claims that the roof began
leaking in 2006. * * * The plaintiff further alleges that the
leaks are due to defects in materials and/or
memorandum in support of its motion, McKenna argued that
Hexagon did not allege viable claims for breach of contract
and breach of implied warranty against McKenna because no
contract existed between the parties. McKenna further argued
that Hexagon failed to specifically plead that Hexagon was an
intended beneficiary of the subcontract between McKenna and
A/Z Corporation, as required by Rule 8 of the Superior Court
Rules of Civil Procedure. In addition, McKenna argued that
the economic loss doctrine barred Hexagon from recovering
economic damages on the negligence claim in Count V of its
opposition to McKenna's motion for summary judgment,
Hexagon accepted McKenna's undisputed facts in their
entirety, and countered that its claims against McKenna for
breach of contract and breach of implied warranty were
sustainable because third-party intended beneficiaries can
maintain a breach-of-contract claim even in the absence of a
contract between a plaintiff and a defendant. Hexagon added
that this theory did not need to be specifically pled and
that, for summary-judgment purposes, it had provided
sufficient proof of this third-party intended beneficiary
theory by accepting the undisputed facts offered by McKenna.
In this regard, we note that Hexagon failed to submit either
the general contract between Hexagon and A/Z Corporation or
the subcontract between McKenna and A/Z Corporation in its
opposition to the motion. Addressing its negligence claim,
Hexagon argued that the economic loss doctrine, which bars
recovery for pure economic loss in a negligence action, does
not apply to this case because no privity of contract existed
between Hexagon and McKenna.
hearing on McKenna's motion for summary judgment was held
on November 21, 2016. The motion justice granted the motion,
holding that Hexagon was only an incidental beneficiary, as
opposed to an intended beneficiary, of the subcontract
between McKenna and A/Z Corporation. The court reasoned that
Hexagon had failed to show that it was directly and
unequivocally an intended beneficiary. He held that the
economic loss doctrine applied, barring Hexagon's claim
for pure economic loss, because the parties were engaged in a
commercial transaction. An order granting McKenna's
motion for summary judgment was entered on December 6, 2016.
On December 19, 2016, Hexagon prematurely appealed to this
Court. Final judgment was entered on December 27,
2016, in favor of McKenna on all counts of Hexagon's
complaint, pursuant to Rule 54(b) of the Superior Court Rules
of Civil Procedure.
motion for summary judgment "is designed to decide in an
expeditious fashion cases presenting groundless claims * *
*." Gallo v. National Nursing Homes, Inc., 106
R.I. 485, 487, 261 A.2d 19, 21 (1970). When we review a
hearing justice's grant of a motion for summary judgment,
we conduct our analysis de novo. Jessup &
Conroy, P.C. v. Seguin, 46 A.3d 835, 838 (R.I. 2012). If
we determine that "there exists no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law[, ]" then we will affirm the grant of
the motion. Sisto v. America Condominium Association,
Inc., 68 A.3d 603, 611 (R.I. 2013) (quoting Zanni v.
Voccola, 13 A.3d 1068, 1071 (R.I. 2011)). In this
endeavor, "[w]e view the evidence in the light most
favorable to the nonmoving party." Narragansett
Indian Tribe v. State, 81 A.3d 1106, 1109 (R.I. 2014).
However, once the moving party establishes "the absence
of a material factual issue, the party opposing the motion
has an affirmative duty to establish either by affidavit or
by other means the material issue of fact to be
decided." Grissom v. Pawtucket Trust Co., 559
A.2d 1065, 1066 (R.I. 1989). The party opposing the motion
cannot establish a genuine issue of fact merely by resting on
denials in its pleadings. Volino v. General
Dynamics, 539 A.2d 531, 533 (R.I. 1988). Rather, the
opposing party must "respond with specific facts that
would constitute a genuine issue for trial."
cases where a party seeks summary judgment on a negligence
claim, "[t]he motion justice may treat the issue of
negligence as a matter of law only if the facts suggest only
one reasonable inference." Berard v. HCP, Inc.,
64 A.3d 1215, 1218 (R.I. 2013) (quoting DeMaio v.
Ciccone, 59 A.3d 125, 130 (R.I. 2013)).